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Report No. 70

Chapter 7

Definitions Pertaining to Instruments

Section 3

7.1. Introductory.-

Three definitions concerned with instruments may now be dealt with. These definitions are needed because several sections require "instruments" for carrying out certain modes of transfer, and some of them require that the instrument should be attested or registered. Having inserted these requirements, the legislature considered it necessary that the essentials thereof should be indicated.

7.2. Instrument.-

"Instruments" is defined as meaning a non-testamentary instrument. It hardly needs any comments or change. It reinforces the position flowing from section 2 to the effect that the Act does not apply to transfers operative on death. The definition may be left as it is.

7.3. Attested-Analysis.-

The definition of "attested" can be broken up into several parts:

(a) There must be attestation-an ingredient whose importance is often not realised;

(b) The attestation must be by two or more "witnesses"- again, an ingredient which seems to have raised problems in regard to seribee, registration officers and the like;

(c) Each of the two witnesses must have seen the executant sign or affix his mark to the instrument or must have seen some other person sign the instrument in the presence and by the direction of the executant or must have received from the executant a personal acknowledgment of his signature or mark or of his signature by such other person;

["We shall have a few comments on "personal acknowledgment".]

(d) Each of the two or more attesting witnesses must have signed the instrument in the presence of the executant;

(e) It shall not be necessary that more than one of such witnesses shall have been present at the same time;

(f) No particular form of attestation shall be necessary.

7.4. Complexity.-

The definition of "attested" may appear to be a complicated one; but this complexity is primarily due to the fact that a number of situations had to be dealt with, and several points that had arisen in the case law prior to the insertion of the definition had to be clarified. The most important clarification is that to the effect that for the purposes of the validity of attestation it is not necessary that both the attesting witnesses must be present at the same time. It is, of course, requisite that each of them must have either witnessed the execution or received an acknowledgment of execution from the executant of the instrument.

It may be noted that the definition of "attested" was added at the instance of Dr. Hari Singh Gour1. The specific provision in the definition of "attested", to the effect that the two witnesses need not have simultaneously witnessed the execution, was inserted in view of the fact that the previous position led to a lot of perjury, and was seen to be unrealistic. Moreover, in view of the requirement of registration which is now compulsory for all gifts and most mortgages, the additional precaution that both witnesses must have witnessed the execution simultaneously was considered unnecessary.

1. Legislative Assembly Debates, 3rd February, 1925, pp. 716, 717.

7.5. Common law and history of the definition.-

At common law, an attesting witness must be present at the execution1. In the Indian Succession Act, attestation included an attestation of an admission of execution. Since the Transfer of Property Act contained no such definition, controversy arose on the subject, till that Privy Council gave the expression a restricted meaning2.

This position was allowed by the Legislature to continue for the future, though a Validating Act was passed in 1917 to validate past instruments which had been attested on admission of execution. In 1926, a specific definition was inserted, overriding the Privy Council ruling. In 1927, it was clarified that the amendment of 1926 was retrospective.

Post-1927 decisions do not reveal any serious controversy that can be appropriately remedied by an amendment. But a look at the important points that have been discussed in the judicial decisions would be worthwhile.

1. Freshfield v. Reed, (1842) 9 M&W 404, followed in Seal v. Claridge, (1861) 7 QBD 516 (519).

2. Shamu Potter v. Abdul Kader, 1912 ILR 35 Mad 697 (PC).

7.6. Animus to attest.-

Although not so expressly stated in the definition, it is an important ingredient of the concept of attestation that there must be an animus to attest1. This is implicit in the word "attest". This ingredient is often lost sight of so that unfortunately controversies arise whether a scribe can be an attesting witness, or whether the registering officer's signature can be regarded as an attestation, or whether an identifying witness can also be regarded as an attesting witness. In general, the answer would be affirmative only if the animus to attest is proved.

1. Abdul Jabhor v. Venkata Sastri, AIR 1969 SC 1147: (1969) 2 SCR 513, affirming Venkata Sastri, AIR 1962 Mad 11.

7.7. Since intention to attest is a question of fact, the answer to be given in a particular case as to whether the test mentioned above is or not satisfied must, in, general, depend on the facts of the case. Many of the apparently conflicting decisions on the subject can be reconciled on this ground. Once the matter is seen in this light, there does not seem to be much scope for improving the form or content of the definition on the question of animus.

7.8. Personal acknowledgment.-

The portion of the definition relating to personal acknowledgment requires some discussion. It should be noted that personal acknowledgment need not be in a particular form and it need not be express. An acknowledgment of signature may well be inferred from the conduct of the executant at the time when the deed is attested by the witnesses.

In fact, many cases of attestation by admission would be of this nature, since it is hardly likely that the executant of a will, mortgage, gift-or for that matter, any other document-would go through the ceremonial or perform the ritual of solemnly announcing to those present as attesting witnesses in so many words that he has signed the instrument. Of course, we recommend no amendment on this point.

It may be noted that according to the English rulings, it is not necessary that the acknowledgment should be expressed or should have been made verbally by the executant. In several cases where the executant was present and the attesting witnesses signed the document in his presence on being assured that he had executed the will, it was held that there had been sufficient acknowledgment.

In Inglesant v. Inglesant, AIR 1935 Mad 176 (2), the deceased had signed her will in the presence of one witness; on the entry of the second witness a person present directed him to sign his name under the testatrix's signature. He did so and the second witness also subscribed the will. The deceased was in the room, but said no word during the proceeding.

The will was lying on the table open and had a heading in large characters that that was the last will and testament, etc. It was held that the deceased "acknowledged" her signature in the presence of two witnesses. So far as the attestation of a will is concerned, it is, in India, governed by the Succession Act, which uses the expression "personal acknowledgment" which occurs in section 3 of the Transfer of Property Act also. In the English Wills Act (1 Vict., Ch. 26, sec. 9), the section is similar, except that the word "personal" does not occur therein.

7.9. As regards the form of attestation, it is now well established that it can be by affixing marks.1

1. Bishwanath v. Babu Ram, AIR 1957 Pat 485, following Maikoo Lal v. Santu, AIR 1936 All 576 (FB 3).

7.10. The definition of "registered" merely refers to the law for the registration of document- the Indian Registration Act, 1908. The definition assumes importance not only for the purposes of those sections which require registration for the validity of certain modes of transfer, but also for the section relating to part performance-section 53A-which cures the absence of, or defects in, registration, subject to the conditions mentioned therein.

The Transfer of Property Act, 1882 Back

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